Letter based on facts evident in case and resolutions—Mendoza

I refer to the letter of lawyer Stephen Monsanto titled “Insider trading at SC?” (Inquirer, 10/27/11) Monsanto refers to letters I wrote to the clerk of court of the Supreme Court in regard to the case now popularly known as the Fasap case and he suggests that in writing the letters, I must have been privy to “insider” information in the Supreme Court or to matters which are confidential.

As in every given situation, like any lawyer, before I decide on what to do in a case, I determine the facts and the applicable laws or rules. In the Fasap case, all of the facts, on the basis of which I acted, are evident from the pleadings in the case and the resolutions issued by the Court, which particularly show that:

1.       The Fasap case, from its institution in 2007, has always been with the “Third Division” of the Supreme Court.

2.       The disputed resolution of Sept. 7, 2011 was issued by the “Second Division.”

3.       During this year, two members of the Supreme Court retired, namely: Justice Antonio Eduardo B. Nachura, who was a member of the Third Division and who had participated in resolutions incident to the case, and Justice Conchita Carpio Morales, who was the chairperson of the Third Division. As a consequence, there was a reorganization of the various divisions of the Supreme Court as per Special Order No. 1025 (June 21, 2011), affecting their composition.

As to the applicable law, I, of course, took into account the Constitution, pertinent laws and, in the instant case, the relevant administrative issuances of the Supreme Court, such as AM No. 99-8-09-SC (Nov. 17, 2009) which determines by what division, and its composition, cases pending in a division will be heard in the event of retirement of those who took part in the previous resolutions, as well as the current Internal Rules of the Supreme Court.

Understandably, I examined very closely the resolution of Sept. 7, 2011 and noted that, unlike other resolutions, the resolution did not identify by name the members of the Second Division who participated in its issuance and their identity may only be determined by referring to “footnotes” in the resolution.

As will be noted, all of the above are available to counsel in the case and need not be provided by employees of the Court from whom Monsanto suggests I have obtained the information.

Needless to add, having the information will not suffice. Utilization of the lawyer’s reservoir of knowledge of the law and the Constitution, and his experience (in my case, going on 60 years in litigation) will help and, in the ultimate, common sense and perspicacity will, of course, be of value.

—ESTELITO P. MENDOZA